In re Fry

Supreme Court of Georgia

March 30, 2017

IN THE MATTER OF DAVID WESLER FRY.

PER
CURIAM.

This
disciplinary matter is before the Court pursuant to the
report and recommendation of special master Joseph A. Boone,
who recommends that the Court accept the "Petition for
Voluntary Resolution" filed by Respondent David Wesler
Fry (State Bar No. 278690). Fry filed his petition after the
appointment of a special master, see Bar Rule 4-227 (c), and
requested that he be allowed to resign his membership in the
Georgia Bar, pursuant to Rule 1-208 of the State Bar's
Governance Rules. Given the serious nature of Fry's
violation and the ramifications of his unusual proposed
resolution, however, the Court rejects Fry's Petition for
Voluntary Resolution.

The
facts as recited in the petition are that in March 2012 in
the Superior Court of Richmond County Fry entered a guilty
plea under North Carolina v. Alford, 400 U.S. 25
(1970), and the First Offender Act, see OCGA § 42-8-60,
to two felony counts of bribery. He was sentenced to five
years probation on each count to be served concurrently.
Fry's probation was terminated in October 2016 and he was
discharged without an adjudication of guilt, as is allowed by
the First Offender Act, see OCGA § 42-8-60 (e). Although
the State Bar received a certified copy of Fry's
convictions in 2012, the Bar attorney assigned to the case
failed to act on those convictions at the time. In 2016,
however, the Bar initiated this disciplinary action pursuant
to Bar Rule 4-106, requesting that Fry show cause before a
special master as to why he should not be disbarred, but
admitting that the Bar's delay in pursuing discipline
could be considered in mitigation, see ABA Standards for
Imposing Lawyer Sanctions (1992), Standard 9.32 (j)
(mitigating factors include delay in disciplinary
proceedings). Fry acknowledged service of the disciplinary
matter and entered into settlement discussions with the Bar.

Eventually,
Fry, who has been a member of the Bar since 1990, filed his
"Petition for Voluntary Resolution" in which he
admitted the facts recited above, but questioned whether an
Alford plea amounted to a violation of Rule 8.4 (a)
(2) (violation of rules for a lawyer to be convicted of a
felony) of Bar Rule 4-102 (d), the maximum penalty for which
is disbarment. Fry asserts that he provided "information
regarding his medical circumstances" to the special
master under seal[1] and requested that the special master
allow the Bar to dismiss this disciplinary action, so that he
could petition to resign from the Bar, as is allowed by State
Bar Governance Rule 1-208 (member in good standing may
petition for leave to resign from the State Bar so long as
there are no disciplinary actions or criminal proceedings
pending against him or her). In his petition, Fry agreed that
if the disciplinary matter was dismissed, he would resign his
Bar membership and would "not seek reinstatement to the
State Bar of Georgia." He argued that this resolution
would be reasonable because it would protect the public and
fairly address the Bar's delay in pursuing this matter.

The
State Bar responded to Fry's petition asserting that an
Alford plea does amount to a violation of Rule 8.4
(a) (2), acknowledging that Fry had submitted medical
information under seal, and asserting that Fry had agreed not
to "seek reinstatement to the State Bar of Georgia, or
seek admission to the practice of law in any other
jurisdiction, " (emphasis added) following his
resignation from the Bar. The Bar contended that Fry's
proposed resolution of this matter was reasonable under the
circumstances of this case and recommended that the special
master accept Fry's request.

In his
report and recommendation, the special master acknowledged
that resignation is not generally available to members who
have disciplinary matters pending, but found that Fry's
request was a reasonable and compassionate solution given the
particular circumstances of this case. The special master
noted that if the Bar had proceeded promptly when it received
notice of Fry's convictions, he would have been in a
better position to defend himself and present evidence of
mitigation while the matter was still fresh in everyone's
minds. The special master considered that Fry is currently 64
years old, in ill health, and claims to have no current,
active legal practice. The special master reasoned that
Fry's proposed solution protects the public by insuring
that a lawyer convicted of a felony is no longer a member of
the Bar, but also takes into account both the delay in the
disciplinary process and the mitigating factors. Therefore,
the special master recommended that the Court "accept
[Fry's proposed] Resolution and dismiss this disciplinary
case on the condition that [Fry] resign his membership in the
State Bar of Georgia and waive any right to seek readmission
in the future." As neither party has sought review by
the Review Panel, both have waived any right to file
exceptions with, or make request for oral argument to, this
Court and the matter is ripe for review here. See Bar Rules
4-217, 4-219.

As an
initial matter, the Bar is correct that an attorney who
pleads guilty to a felony under Alford still commits
a violation of Rule 8.4 (a) (2). See Bar Rule 4-106 (a) and
(g) (providing for show-cause hearing for attorneys convicted
of any felony "whether by verdict, plea of guilty, plea
of nolo contendere or imposition of first offender probation,
" and noting that certified copy of imposition of first
offender treatment shall be prima facie evidence of a
violation of Rule 8.4); see also In the Matter of
Davis, 292 Ga. 897, 897-898 and n.1 (742 S.E.2d 734)
(2013) (finding no error in special master's finding that
a conviction based on an Alford plea amounts to a
violation of 8.4 (a) (2)); In the Matter of Ortman,
289 Ga. 130 (709 S.E.2d 784) (2011) (same); In the Matter
of Suttle, 288 Ga. 14 (701 S.E.2d 154) (2010) (same).
And clearly the parties are correct that Fry's proposed
resolution will permanently remove him from the rolls of
attorneys authorized to practice law in Georgia. But, the
specific discipline sought in this case is unusual and while
other states have (or have had) Bar Rules that allow an
attorney with pending disciplinary cases to resign from the
Bar in lieu of defending those disciplinary matters,
[2] all
the parties acknowledge that Georgia's Bar Rules do not
include any such provisions, but instead allow for the
voluntarily surrender of one's law license. See In
the Matter of Atkins, 253 Ga. 319, 320 (320 S.E.2d 146)
(1984) (an attorney may not escape disciplinary proceedings
by simply resigning from the State Bar; resignation after
initiation of disciplinary proceedings is not consistent with
a voluntary surrender of license because there is no
admission by attorney of acts complained of); but see, In
the Matter of Reed, 244 Ga. 612 (261 S.E.2d 398) (1979)
(accepting voluntary resignation from the practice of law
where Reed admitted that his bribery conviction violated
Standard 3, which prohibited lawyers from engaging in illegal
professional conduct involving moral turpitude). And while
this Court has recognized that a "Disciplinary
Resignation" in Florida-which included some admission of
"guilt" with regard to alleged disciplinary rules
violations-is the substantial equivalent to Georgia's
voluntary surrender of license, see In the Matter of
Davidson, 269 Ga. 901 (506 S.E.2d 869) (1998), Fry is
not requesting permission to voluntarily surrender his
license in the face of pending disciplinary matters. In fact,
he is not even admitting that he violated any disciplinary
rule. Instead, he appears to be requesting that his
professional record be scrubbed of any indications of
disciplinary problems and that he be allowed to resign with a
clear disciplinary record, presumably because his criminal
record is "clear" as a result of the First Offender
Act. And, although his criminal record is clear at the
moment, Fry's guilty pleas to two counts of bribery, and
his first offender convictions are matters of public record
and could be used against him in the future if he commits
additional criminal offenses, but his proposed resolution
would leave his disciplinary record completely clean.
Further, neither Fry's petition, nor the special
master's report and recommendation make absolutely clear
that Fry's commitment to refrain from seeking readmission
to the practice of law would extend beyond Georgia to other
jurisdictions, and if he chose to apply for admission in
other jurisdictions in future years, he would be able to
truthfully report that he has no disciplinary record in
Georgia. See Bar Rule 4-224 (a), (e), (f) (governing
expungement of dismissed disciplinary cases and allowing
attorney to omit reference to expunged cases when asked about
prior complaints or discipline).

Moreover,
the rationales for adopting this new and special rule for
Fry's case are unavailing. Although Fry presumably is
nearing "retirement age, " and appears to have
convinced the special master and Bar of his ill health, this
Court is not privy to his medical situation because the
single letter filed under seal in this Court, see n.1
supra, sheds no light on any current medical
condition(s) faced by Fry, and any other medical records were
not forwarded to this Court. And, although Fry has had to
wait four years to learn whether and when the Bar intended to
bring disciplinary action against him, the fact that he faced
disbarment for his felony convictions should not have come as
a surprise given the provisions of Bar Rule 4-106; the fact
that the statute of limitations under Bar Rule 4-222 is four
years on most Bar actions (although arguably there is no
limitation on actions initiated under Bar Rule 4-106 on
felony convictions as such actions are not initiated by the
"memorandum of grievance" referenced in Bar Rule
4-222); and the fact that the record contains no evidence
showing that the delay caused him any actual prejudice. Under
these circumstances, the Court declines to create an
alternative to the voluntary surrender of license allowed
under current Bar Rules. Therefore, the Court rejects
Fry's "Petition for Voluntary Resolution" and
remands this matter for further proceedings.

Petition
for Voluntary Resolution rejected.

All
the Justices concur.

---------

Notes:

[1]Only one document has been forwarded to
this Court under seal and that document appears to have been
created to assist with Fry's criminal proceedings in
2012.

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